In the Matter of the Complaint Against: CHARLES SMITH, l0478 N.W. 3lst Terrace, Miami, FL 33l72-l2l6; CS ENTERPRISES, l0478 .W. 3lst Terrace, Miami, FL 33l72-l2l6; AMCAN ENTERPRISES, INC., l0478 N.W. 3lst Terrace, Miami, FL 33l72-l2l6 d/b/a NORTH AMERICAN DIRECTORIES & THE WASHINGTON YELLOW PAGES, 1001 Fourth Ave., Suite 3200, Seattle, WA 98154-1101 and NORTH AMERICAN DIRECTORIES, THE ARIZONA YELLOW PAGES, 4350 E. Camelback Rd., #200-F, Phoenix, AZ 850l8-2763 P.S. Docket No. 36/129 10/07/91 Mason, Randolph D., Administrative Law Judge APPEARANCE FOR COMPLAINANT: Jerry Belenker, Esq., Consumer Protection Division, Law Department, United States Postal Service, Washington, DC 20260-1144 APPEARANCE FOR RESPONDENTS: Frank J. Shannon, III, Esq., 422 Candler Building, 127 Peachtree Street, N.E., Atlanta, GA 30303-1810
DECISION ON REMAND REGARDING OFFICIAL NOTICE
In connection with an appeal to the Judicial Officer, Respondents filed a Motion to Be Heard and to Present Evidence with respect to a factual finding by the Administrative Law Judge based upon official notice. In this regard, the Administrative Law Judge took official notice of the fact that standard yellow page telephone directories are typically supplied to all telephone subscribers in the recipients' area (I.D. FOF 18 & 19). In a Postal Service Decision dated June 3, 1991, the Judicial Officer remanded the proceeding to the Administrative Law Judge for the purpose of allowing the parties an opportunity to present evidence pertaining to the officially-noticed fact.
Accordingly, on July 10, 1991, a hearing was held on this issue in Washington, DC. All parties were represented by counsel and afforded full opportunity to be heard, and examine and cross-examine witnesses. Respondents presented the testimony of Respondent Charles Smith. Complainant presented the testimony of Barbara Beck, from the Yellow Pages Publishers Association, from the hearing on July 9, 1991, in P.S. Docket No. 37/180.
On September 30, 1991, the parties filed briefs which have been duly considered. To the extent indicated below, proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence. The findings of fact and conclusions of law set forth below are based on the entire record herein, including observation by the Administrative Law Judge of the witnesses and their demeanor, the briefs, stipulations, exhibits, and other relevant evidence adduced at the hearing:
FINDINGS AND CONCLUSIONS
1. The officially-noticed fact was fully corroborated by the testimony of Barbara Beck, Vice President of Field Operations of the Yellow Pages Publishers Association, which represents 133 publishers.
About half of these publishers are affiliated with utility companies and the rest are independent. They constitute about 90% of all of the yellow page directories published (Dkt. No. 37/180, Beck, Tr. 36). Ms. Beck stated, and it is found, that it is the general practice for yellow page directories, published by both independent and utility companies, to be delivered to all telephone subscribers in a given community (Id., Tr. 49-50). Such distribution provides the best coverage and service for the advertisers (Id., Tr. 50-51).
2. Respondent Charles Smith was presumably called as a witness to refute the matter of which official notice was taken. However, he was unable to do so. He alleged that he understood #7d of the Complaint to refer to region as an administrative region of USPS, i.e. a multi-state area. In accordance with this alleged understanding, he testified that he knows of no telephone directories that are distributed to every telephone subscriber in any multi-state area (Tr. 11-12). Respondent's purported interpretation of #7d is incredible, and his testimony with respect thereto is irrelevant.
This proceeding obviously involves the false representation that Respondents' directory is a standard yellow page directory n1 distributed to all telephone subscribers in the recipients' community area.
n1 As used here and in the Initial Decision, a standard yellow page directory is one that is "regularly and widely used," "well established and very familiar," Webster's Ninth New Collegiate Dictionary (1986 ed.), and "usual, common, or customary," Random House College Dictionary, (1980 ed.). Contrary to Respondent's assertion, Ms. Beck did not deny the existence of any standard directory (Beck, Tr. 69).
3. Accordingly, the finding that standard yellow page telephone directories are typically supplied to all telephone subscribers in the recipients' area is hereby reaffirmed. This proceeding is transferred to the Judicial Officer for further processing of the Respondents' exceptions on appeal.